Opinion
CV165009149
03-21-2017
Holly Bartolotta v. TICO Realty, LLC
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
ELPEDIO N. VITALE, JUDGE.
On November 17, 2016, the plaintiff Holly Bartolotta filed a complaint against the defendant, TICO Realty, LLC (" TICO") pursuant to C.G.S. § 47a-14h. The plaintiff alleges that she is a tenant in a building known as 127 Grand Street in Middletown, Connecticut, and occupies apartment 403. The plaintiff further alleges that under the terms of a written lease agreement, the rent for said apartment is $800 per month, due on the tenth day of each month. The complaint alleges that the defendant TICO has failed to maintain the premises as required under C.G.S. § 47a-7 and that the following violations exist: " three [unsafe and hazardous] electrical outlets, window screens missing, bathroom ceiling leaking since approximately August 23, 2016, smoke alarm." The matter was tried to the court on February 27, 2017, March 6, 2017, and March 20, 2017.
The plaintiff testified, and also presented the testimony of her son Jeffrey Ruffino, and Dennis Murray, employed as a Housing Code Enforcement Officer for the City of Middletown. TICO offered evidence from Richard Morales, who is responsible for maintenance of the building, as well as the building's owner, Valbona Burns.
In reaching its conclusions, the court has fairly and impartially considered all of the evidence received at the hearing; evaluated the credibility of the witnesses; assessed the weight, if any, to be given specific evidence and measured the probative force of conflicting evidence; reviewed all exhibits, relevant statutes, and case law; and has drawn such inferences from the evidence, or facts established by the evidence, that it deems reasonable and logical.
To the extent it is necessary to further amplify, the court's credibility determinations for each witness--expert and non-expert--were made, inter alia, on the basis of the conduct, demeanor, and attitude of the witnesses as well as all the other factors relevant for each witness with respect to the credibility evaluation. See Lapointe v. Commissioner of Corrections, 316 Conn. 225, 268-71, 112 A.3d 1 (2015). Additionally, any other evidence on the record not specifically mentioned in this decision that would support a contrary conclusion, whether said evidence was contested or uncontested by the parties, was considered and rejected by the court. See State v. Edmonds, 323 Conn. 34, 145 A.3d 861 (2016).
Discussion
I.
Statutes
General Statutes § 47a-14b provides in relevant part: " (a) any tenant who claims that his landlord has failed to perform his legal duties, as required by Section 47a-7 . . . may institute an action in the superior court having jurisdiction over housing matters in the judicial district in which he resides to obtain the relief authorized by this section and Sections 47a-20 and 47a-68. No tenant may institute an action under this section if a valid notice to quit possession or occupancy based upon nonpayment of rent has been served on him prior to his institution of an action under this section or if a valid notice to quit possession or occupancy based on any other ground has been served on him prior to his making the complaint to the agency referred to in subsection (b) of this section, provided any such notice to quit is still effective. " (b) The action shall be instituted by filing a complaint, under oath, with the clerk of the court. The complaint shall allege (1) the name of the tenant; (2) the name of the landlord; (3) the address of the premises; (4) the nature of the alleged violation of Section 47a-7; and (5) the dates when rent is due under the rental agreement and the amount due on such dates. The complaint shall also allege that at least twenty-one days prior to the date on which the complaint is filed, the tenant made a complaint concerning the premises to the municipal agency, in the municipality where the premises are located, responsible for enforcement of the housing code or, if no housing code exists, of the public health code, or to the agency responsible for enforcement of the code or ordinance alleged to have been violated, or to another municipal agency which referred such complaint to the municipal agency responsible for enforcement of such code or ordinance."
General Statutes § 47a-7 provides in relevant part: " (a) A landlord shall: (1) Comply with the requirements of chapter 368o and all applicable building and housing codes materially affecting health and safety of both the state or any political subdivision thereof; (2) make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition, except where the premises are intentionally rendered unfit or uninhabitable by the tenant, a member of his family or other person on the premises with his consent, in which case such duty shall be the responsibility of the tenant; (3) keep all common areas of the premises in a clean and safe condition; (4) maintain in good and safe working order and condition all electrical, plumbing, sanitary, heating, ventilating and other facilities and appliances and elevators, supplied or required to be supplied by him; (5) provide and maintain appropriate receptacles for the removal of ashes, garbage, rubbish and other waste incidental to the occupancy of the dwelling unit and arrange for their removal; and (6) supply running water and reasonable amounts of hot water at all times and reasonable heat except if the building which includes the dwelling unit is not required by law to be equipped for that purpose or if the dwelling unit is so constructed that heat or hot water is generated by an installation within the exclusive control of the tenant or supplied by a direct public utility connection. (b) If any provision of any municipal ordinance, building code or fire code requires a greater duty of the landlord than is imposed under subsection (a) of this section, then such provision of such ordinance or code shall take precedence over the provision requiring such lesser duty in said subsection."
II
The Elements of a Housing Code Enforcement Action
In Grant v. Urban Developers, LLC, Superior Court, judicial district of Hartford, Housing Session, Docket No. HDSP 7136754, (May 24, 2006, Bentivegna, J.), the court, Bentivegna, J., articulated the elements of a tenant's action pursuant to § 47a-14h to compel the landlord to perform his statutory duties pursuant to § 47a-7: " The remedies available to a tenant in the event of the landlord's breach of his statutory duties include a tenant complaint action to compel the landlord to perform his legal duties . . . Pursuant to General Statutes § 47a-14h, a tenant may initiate an action to compel the landlord to meet his/her statutory responsibilities under General Statutes § 47-7 . . . The tenant has the burden of proof [by a preponderance of the evidence] in a tenant complaint case, also referred to as a housing code enforcement action or payment into court action. The essential elements of the case are as follows: (1) The plaintiff is a tenant at the premises; (2) The defendant is the landlord of the premises; (3) The parties entered into an oral/written lease agreement for a term of one week/month/year; (4) The tenant pays an agreed-upon rent by a certain date and the rent has been paid to the landlord; (5) At least twenty-one days prior to the date on which the complaint is filed, the tenant made a complaint concerning the premises to the municipal agency, in the municipality where the premises are located, responsible for enforcement of the housing code or, if no housing code exists, of the public health code, or to the agency responsible for enforcement of the code or ordinance alleged to have violated, or to another municipal agency which referred such complaint to the municipal agency responsible for enforcement of such code or ordinance; (6) The tenant has not been served with a notice to quit based upon nonpayment of rent prior to the institution of this action, and has not been served with a notice to quit based on any other ground prior to his making the complaint, provided any such notice to quit is still effective; (7) The landlord has failed to perform his/her legal duty to maintain the premises under § 47a-7, in the following ways (list violations)." (Emphasis omitted.)
In summary, prior to filing the complaint, the tenant must not have been served with a valid notice to quit. Furthermore, at least twenty-one days prior to filing the complaint, the tenant must report the alleged housing code violations to the agency responsible for enforcing the housing codes. Notification to the housing code enforcement agency is mandatory, but there is no requirement that the notification be in writing, and whether the tenant complied with this requirement is a question of fact. Balint v. Casale, 40 Conn.App. 595, 598 672 A.2d 508 (1996). Twenty-one days after notifying the enforcement agency, the tenant may file a complaint pursuant to § 47a-14h(b). Additionally, on each rent due date beginning on or after the date the complaint is filed, the tenant must deposit with the court clerk an amount equal to the rent due, and the tenant's failure to make such payment may result in the complaint being dismissed. Section 47a-14h(h); Wilson v. Jefferson, 98 Conn.App. 147, 159 n.9, 908 A.2d 13 (2006). The court clerk will schedule a hearing not more than fourteen days after the complaint is filed; § 47a-14h(c); and at the hearing, the tenant must prove by a preponderance of the evidence that the landlord violated his statutory obligations pursuant to § 47a-7. The court must weigh the evidence and assess the credibility of the witnesses; Balint v. Casale, supra, 40 Conn.App. at 599; and whether the alleged violations existed is a question of fact. Shipman v. Carr, 38 Conn.Supp. 393, 395, 449 A.2d 187 (1982).
III
Relief Available Under § 47a-14h
General Statutes § 47a-14h(e) provides: " The complainant may seek and the court may order interim or final relief including, but not limited to, the following: (1) An order compelling the landlord to comply with the landlord's duties under local, state and federal law; (2) an order appointing a receiver to collect rent or to correct conditions in the property which violate local, state or federal law; (3) an order staying other proceedings concerning the same property; (4) an award of money damages, which may include a retroactive abatement of rent paid pursuant to subsection (h) of this section; and (5) such other relief in law or equity as the court may deem proper. If the court orders a retroactive abatement of rent pursuant to subdivision (4) of this subsection and all or a portion of the tenant's rent was deposited with the court pursuant to subsection (h) of this section by a housing authority, municipality, state agency or similar entity, any rent ordered to be returned shall be returned to the tenant and such entity in proportion to the amount of rent each deposited with the court pursuant to subsection (h) of this section." Additionally, " [t]he court, in ordering interim or final relief, may order that accrued payments of rent or use and occupancy held by the clerk be used for the repair of the building or be distributed in accordance with the rights of the parties." Section 47a-14h(g).
Section 47a-14h(e) provides for several remedies if the court finds that the landlord has breached his or her statutory duties. The court may order the landlord to repair and correct all housing and building code violations. Gofman v. Alemida , Superior Court, judicial district of New Britain, Housing Session, Docket No. NBSP 046592, (September 22, 2006, Bentivegna, J.); see also Granjales v. Morales, Superior Court, judicial district of New Britain, Housing Session, Docket No. NBSP 045613, (May 1, 2006, Bentivegna, J.). Furthermore, the court may, if necessary to address and correct the deficiencies conditions in the property, appoint a receiver of rent; Balint v. Casale, supra, 40 Conn.App. at 599-600; and direct that the rent be paid over to the receiver be used exclusively for the repair and maintenance of the premises. Id., at 597.
The relief of rent abatement pursuant to § 47a-14h(e)(4) deserves special attention. " [T]he public policy [the residential tenancy scheme of penalties] evidences is one of protecting tenants from conditions that materially affect health and safety . . . There is nothing to suggest that a de minimis violation of a state or local building or housing code that has no such effect would bar recovery of rent." (Citation omitted; internal quotation marks omitted.) A& M Towing & Recovery, Inc. v. Guay, 282 Conn. 434, 451, 923 A.2d 628 (2007). Moreover, " [a] review of the relevant case law indicates that the sorts of code violations § 47a-7 is concerned with relate specifically to the habitability of the property for the occupants and directly implicate the landlord-tenant relationship." Bray v. Bray, 51 Conn.Supp. 133, 142, 978 A.2d 582 (2008).
Our Appellate Court has concluded that " the sanctions in [§ 47a-14h] are not triggered until and unless evidence is adduced at trial establishing that there is a substantial violation or series of violations of housing and health codes creating a material risk or hazard to the occupant ." (Emphasis added; internal quotation marks omitted.) Visco v. Cody, 16 Conn.App. 444, 450-51, 547 A.2d 935 (1988); Zahradka v. McNulty, Superior Court, judicial district of New Haven, Docket No. CV 04 4000292, (November 4, 2004, Tanzer, J.). Thus, " for a tenant to make a successful claim that he had the right to withhold payment of rent, he must show that the landlord's failure to comply with § 47a-7(a) materially affects his safety . . . or has rendered the premises uninhabitable . . . Furthermore, to establish uninhabitability, the tenant needs to do more than assert a unilateral, self-serving statement that the premises are untenantable." (Citations omitted; internal quotation marks omitted.) Visco v. Cody, supra, 16 Conn.App. at 450. Moreover, " [w]hen a tenant has in good faith requested the landlord to make repairs, the repairs must be necessary to maintain the leased premises in a fit and habitable state . . . Violations of the code do not, per se, mandate a finding of uninhabitability. There must be either a series of violations or a violation so substantial that continued occupancy would constitute a hazard to the safety and welfare of the occupants." Patterson v. Dykins, Superior Court, judicial district of Hartford, Housing Session, Docket No. HDSP 148040, (November 10, 2008, Gilligan, J.).
Whether the premises are uninhabitable to the extent that the tenant is relieved of the obligation to pay rent depends on the facts of each individual case. Butt v. Lake, Superior Court, judicial district of New Haven, Housing Session, Docket No. NHSP 093280, (May 13, 2008, Crawford, J.). Conditions that render the premises uninhabitable include depriving a tenant of running water, the presence of lead paint, violations of the fire code, or a combination of violations, such as defective doors and windows and vermin infestation. Bray v. Bray, supra, 51 Conn.Supp. at 142. By contrast, a tenant's claim that the premises are untenantable is undermined if the tenant continues to occupy the premises. Johnson v. Fuller, 190 Conn. 552, 558, 461 A.2d 988 (1983); see also Macciaroli v. Giannantoni, Superior Court, judicial district of Litchfield, Geographic Area 18 at Bantam, Docket No. CV 186775, (February 7, 2000, Gill, J.) (remaining in possession of premises after problems arise discredits tenant's claim that premises are unfit and uninhabitable). Furthermore, although the premises may not be uninhabitable, the landlord's failure to perform his or her statutory duties may warrant a partial abatement of rent, though it is the tenant's burden to prove the amount of his or her damages. Whitaker v. Amato, Superior Court, judicial district of New Haven, Housing Session, Docket No. HCNH 9711133, (February 24, 1998, Levin, J.).
Based on the evidence presented, the court makes the following findings.
The landlord, Valbona Burns, and the tenant, Holly Bartolotta, entered into a lease agreement for premises known as 127 Grand Street, apartment 403 in Middletown, Connecticut. The lease term was for one year, and occupancy by Ms. Bartolotta commenced November 2, 2015. The plaintiff made complaints regarding her bathroom ceiling, certain electrical outlets and window screens to Ms. Burns. Ms. Burns began keeping a record of her telephone contact with Ms. Bartolotta as to these complaints in September 2016. The ceiling issue was the result of a bathroom leak located directly above the subject bathroom. The leak was eventually repaired, but the damage to the ceiling in Ms. Bartolotta's bathroom remained unrepaired. Dennis Murray, a Housing Code Enforcement Officer for the City of Middletown, reported to Ms. Bartolotta's apartment on October 17, 2016 in response to Bartolotta's complaints. He determined that three electrical sockets in the living room required replacement as their condition constituted a " hazzard for fire and shock." The bathroom ceiling was also dripping water emanating from the bathroom in apartment 503 above.
Upon reinspection of the apartment on February 27, 2017, Mr. Murray observed that the electrical sockets in question had not been repaired, but the source of the water drip in the bathroom ceiling had been stopped. However, the ceiling repair was " incomplete, " in that the ceiling had to be " floated" and painted. He did not find a mold issue.
The difficulty, however, is that there was evidence of a tumultuous relationship between Ms. Bartolotta and Richard Morales, who handles all of the building's repairs. Each blames the other for the failure of all of the repairs at issue to be effectuated in a timely manner. Mr. Morales repaired the water leak occurring in the apartment above Ms. Bartolotta immediately after being apprised of the situation by the health department and Ms. Burns. Mr. Morales asserts that Ms. Bartolotta refused to allow him entry into the apartment to repair the electrical outlets, replace the screens, and make the additional needed repairs to the ceiling. Ms. Bartolotta asserts that Mr. Morales ignored her requests to make the repairs.
The court, however, credits the testimony of Valbona Burns who testified that Ms. Bartolotta contacted her about these issues. Commencing on September 17, 2016, Ms. Burns personally attempted to make arrangements with Ms. Bartolotta to make the needed repairs. Ms. Burns provided her cell phone number to all tenants, including Ms. Bartolotta. Ms. Burns characterized Ms. Bartolotta's behavior towards her as " difficult" and was " wary" of her. Cognizant of the poor relationship between Mr. Morales and Ms. Bartolotta, Ms. Burns offered to be present in the apartment with Mr. Morales as he completed the repairs at issue. Ms. Burns also attempted to eliminate Mr. Morales entirely from the process, thus presumably removing the claimed barrier to a successful resolution of the issues. Despite all of these efforts, which included offering another individual to effectuate the repairs, Ms. Burns was unable to gain access into the apartment. Ms. Burns's record of contact with Ms. Bartolotta covers the period from September 17, 2016 to February 14, 2017.
Ms. Bartolotta acknowledged that she spoke directly to Ms. Burns about the issues, but offered this court no cogent explanation as to why she rebuffed Ms. Burns's efforts to make the needed repairs, including without the involvement of Mr. Morales. The court notes that Ms. Burns first contacted Ms. Bartolotta a month before Ms. Bartolotta contacted the Health Department, and Ms. Burns made repeated, and unsuccessful, efforts to address the issues.
It is perhaps in recognition of the untenable position that such evidence creates with regard to Ms. Bartolotta's claims that Ms. Bartolotta stated to this court on March 6, 2017, that she " really [does not] care if it gets fixed or not" and " we just want out." The former comment adversely impacted Ms. Bartolotta's credibility on the relevant issues before this court. Having considered the law and equity, the tenant Ms. Bartolotta has failed to prove, by a preponderance of the evidence, that the landlord did not perform her legal duty to maintain the premises under C.G.S. Sec. 47a-7.
The evidence demonstrates that upon receipt of the tenant's complaints, the landlord made reasonable efforts to effectuate the required repairs, but was thwarted by the tenant's refusal to allow entry into the tenant's apartment. Such evidence calls into question whether Ms. Bartolotta was at all times acting in good faith, particularly when the landlord offered to remove Mr. Morales from the equation. Any alleged failure by the landlord to perform her statutory duties is connected with the tenant Bartolotta's unwillingness to work in a timely and constructive fashion directly with the landlord to make the repairs at issue. Any problem with Mr. Morales could have been circumvented with the approaches suggested by Ms. Burns, but Ms. Bartolotta inexplicably rebuffed those efforts. The repairs were effectuated only by intervention by this court mandating access to the apartment on March 11, 2017. Ms. Bartolotta nevertheless claimed on March 20, 2017, that the issue with the screens remains unresolved, yet took no steps to contact anyone, including Dennis Murray, from March 11, 2017 to March 20, 2017, regarding her dissatisfaction. The court is unpersuaded by her reasons for failing to do so. As Mr. Murray noted on March 20, 2017, Ms. Bartolotta's October 17, 2016 complaint omitted any reference to the screens at all. There is no evidence to suggest that the screens at issue are anything other than a de minimis violation.
It appears that although Ms. Bartolotta brought certain issues to the attention of Ms. Burns, Ms. Burns's repeated efforts to attempt to address said issues were met by disinterest and hostility by Ms. Bartolotta.
On March 20, 2017, the court was provided with evidence that the repairs to the electrical outlets and ceiling have been made to the satisfaction of the Housing Code Enforcement Office. Ms. Bartolotta indicated her assent to the evidence that the electrical outlets and ceiling have been repaired. " General Statutes § 47a-14h, is especially narrow. It prevents landlords from evicting tenants. It prevents the landlord from receiving rent. It requires the landlord to make repairs. No money damages are authorized by statute other than the return of rent paid into court." Henesy v. Fleiss, Superior Court, judicial district of Stamford-Norwalk, Docket No. HCNO-9512027, (April 25, 1996, Tierney, J.). See also Rosati v. Bogue, Superior Court, judicial district of New Haven, Docket No. CVNH8207134-S, (August 23, 1983, Harrigan, J.) (Court found no authority implicit in § 47a-7 that would allow the tenant to charge the landlord for repair costs).
The tenant Ms. Bartolotta has failed to satisfy her burden to prove the existence, or the amount of her claimed damages. Whitaker v. Amato, supra .
For the forgoing reasons, judgment is entered for the defendant landlord, and all rent being held on deposit by the Clerk of the Court is ordered to be immediately turned over to the landlord as payee.